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24:0249(30)NG - NTEU and IRS, Denver District -- 1986 FLRAdec NG

[ v24 p249 ] 24:0249(30)NG
The decision of the Authority follows:

24 FLRA No. 30
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE,
DENVER DISTRICT
Agency
Case No. 0-NG-1192
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two Union proposals. /1/ For the reasons which follow,
we find that both proposals are within the duty to bargain.
II. Background
The proposals at issue in this case arose when the parties were
renegotiating their local Automated Collection Site (ACS) Agreement.
The ACS utilizes a Zilog computer system which stores information on
delinquent taxpayer accounts and the results of investigations of
taxpayers. The employees involved in this case work at a "call site"
which attempts to contact delinquent taxpayers and to investigate their
assets. The Agency indicates that all employees use the computer system
both to retrieve information about taxpayers and to document actions
taken on cases. Agency Statement of Position at 2.
III. Union Proposal 1
Section 2. The Employer will provide a password for use of
Zilog for official union business.
A. Positions of the Parties
The Agency claims that Union Proposal 1 is in violation of the
national ACS agreement and not within the duty to bargain under the
reopener clause because there is no provision in the national agreement
delegating authority to parties on the local level to negotiate over the
issue of union use of the computer system. The Agency further argues
that providing the Union with access to the computer system would
interfere with its right to determine its internal security pursuant to
section 7106(a)(1) of the Statute because it would require giving the
Union access to confidential taxpayer information as well as
word-processing functions of the system. Finally, the Agency argues
that the proposal conflicts with a Government-wide regulation, 5 CFR
Section 735.205, which prohibits use of Government property "for other
than officially approved activities," insofar as the proposal is meant
to allow use of computer terminals for internal union business.
The Union asserts that the proposal concerns an issue which is a
proper subject for bargaining in the local ACS agreement because it is
local in effect and the national ACS permits such issues to be resolved
at the local level. The Union further argues that the proposal does not
conflict with the Agency's right to determine its internal security
because the Union employees who would gain access to confidential
taxpayer information from access to the Zilog computer already have
access to such information through their jobs. In addition, the Union
denies that its proposal would conflict with 5 CFR Section 735,205,
stating that the proposal is intended to authorize use of the computer
system for "official" union business, which it says was meant to exclude
"internal" union business. The Union states that it proposes to make
the same use of the computer that it makes of typewriters in other
Denver District offices and that the proposal is necessary because
typewriters are scarce.
B. Analysis
The question raised by the Agency regarding whether Proposal 1 is a
proper subject for bargaining under the reopener clause cannot be
resolved in this decision. The record in this case fails to provide any
basis for substantiating the agency's assertions. Further, to the
extent that there are factual issues in dispute between the parties
concerning the duty to bargain in the specific circumstances of this
case, these issues may be raised in other appropriate proceedings. See,
for example, American Federation of Government Employees, AFL-CIO, Local
2736 and Department of the Air Force, Headquarters 379th Combat Support
Group (SAC), Wurtsmith Air Force, Base, Michigan, 14 FLRA 302 at 306, n.
(1984).
Proposal 1 reflects the increased automation of Government work and
the increased efficiencies of agency operations realized by that
automation. There are, however, corresponding responsibilities which
result from the automation, primarily responsibilities relating to the
internal security of automated systems and access to their use. The
legitimate security, privacy, and mission accomplishment concerns of
management must be recognized, as well as the benefits of the Union of
access to such systems.
In the instant case, the Union asserts without contradiction, that
"typewriters are scarce at ACS." Union Petition for Review at 3. The
Agency counters that it "does not have the capabilities to ensure
limited access to only the word processing functions," and that the
proposal would provide the Union with access to "confidential taxpayer
information." Agency Statement of Position at 6. The Agency does not,
however, dispute the Union's assertions that the Union officials who
would use the password are employees of the Agency who "already have
access to confidential taxpayer information." Union Response at 2.
Insofar as it appears from the record, the Union would not gain any
additional access to taxpayer information by obtaining a password
enabling it to use the word processing functions of the computer system.
For this reason, the instant case is distinguishable from the cases
concerning internal security practices cited by the Agency, National
Federation of Federal Employees, Local 1827 and Defense Mapping Agency,
Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791
(1984), and National Labor Relations Board Union and General Counsel of
the National Labor Relations Board, 5 FLRA 696 (1981). Defense Mapping
Agency concerned agency attempts to prevent the disclosure of classified
information to the public which employees learned in the course of their
jobs. National Labor Relations Board concerned a proposal which would
have allowed employees to have access to confidential information which
otherwise would not have been available to them.
The Authority has previously recognized the negotiability of
proposals concerning a union's use of agency facilities for the conduct
of official union business. See, for example, American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patternson Air Force Base, Ohio, 2 FLRA 603 (1980) (Proposal II),
enforced sub nom. Department of Defense v. FLRA 659 F.2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Our
holding in the instant case is a continuation of that line of precedent.
It must be a careful, case-by-case continuation in light of concerns
for the integrity of automated systems containing information such as
that in this case.
Finally, we turn to the question of whether the proposal conflicts
with 5 CFR Section 735.205, as claimed by the Agency, because it is
intended to allow use of the computer for internal union business. The
proposal states that the computers will be used for official union
business. The Union states that the proposal was intended to exclude
internal union business. The Union's statement as to the meaning is
consistent with the wording of the proposal and we adopt it for the
purpose of this decision. In the related context of official time for
employees representing a union, we have held that activities involving
labor-management contacts, as well as preparation for them, are not
internal union business. National Association of Government Employees,
SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West
Roxbury, Ma., 23 FLRA No. 74, slip op. at 2-3 (1986). The Agency does
not claim, nor does the record establish, that use of Government
property in connection with carrying out official Union business would
be prohibited by 5 CFR Section 735.205.
CONCLUSION
The Agency has not established that Union Proposal 1 conflicts with 5
CFR Section 735.205 or with the Agency's right to determine its internal
security under section 7106(a)(1). Therefore, it is within the duty to
bargain.
IV. Proposal 2
Section 4. Each employee will be provided with a locker for
his/her personal effects. Management will not inspect these
without good reason. If it becomes necessary to inspect a locker
it will be done with at least two people present, one of which is
the affected employee or his/her designated union representative.
A. Positions and the Parties
The Agency's sole contention regarding Proposal 2 is that it involves
matters which were not delegated to local bargaining by the national ACS
agreement. The Union argues that the issue presented by the proposal is
properly negotiated at the local level because, while the provision of
lockers themselves was negotiated at the national level, the question of
procedures to be followed in Agency inspection of lockers is a local
issue which has surfaced since the negotiation of the National ACS
agreement. The Union also argues that it has not waived its right to
negotiate over the proposal.
In addition, the Union states that the proposal is negotiable,
consistent with Authority precedent holding that proposals requiring
that employees be permitted to be present during a search of their work
area are negotiable. National Treasury Employees Union and Department
of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982); National
Treasury Employees Union and NTEU Chapter 61 and Department of the
Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA
304 (1981)
B. Analysis
As stated in connection with the discussion of Proposal 1, the
factual questions concerning the duty to bargain are not appropriately
considered in a negotiability appeal. The record in this case fails to
provide any basis for substantiating the Agency's assertions. Further,
to the extent that there are factual issues in dispute between the
parties concerning the duty to bargain in the specific circumstances of
this case, these issues may be raised in other appropriate proceedings.
See Wurtsmith Air Force Base, 14 FLRA at 306 n.6. Thus, the Authority
will not consider further the Agency's arguments about whether Union
proposal 2 concerns an appropriate subject for bargaining.
Turning to the substance of the proposal, we find, in agreement with
the Union, that it is negotiable. In Internal Revenue Service, Albany
District, New York, 7 FLRA 304, the Authority found that a similar
proposal which prevented management from examining the contents of an
employee's desk without the employee being present was negotiable. The
Authority concluded in that case that the proposal did not prevent the
agency from determining its internal security practices under section
7106(a)(1) of the Statute nor did it concern a method or means of
performing work. Similarly, for the reasons set forth more fully in
Internal Revenue Service, Albany District, New York, Union proposal 2 is
negotiable.
V. Order
The Agency must, upon request (or as otherwise agreed to by the
parties) bargain concerning the Union's proposals. /2/
Issue, Washington, D.C. November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union withdrew its appeal of the remaining proposals
originally submitted. They will not be considered further here.
(2) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.